Commerce Energy Group, Inc. - Current report filing (8-K)
June 18 2008 - 5:20PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): June 13, 2008
COMMERCE ENERGY GROUP, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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001-32239
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20-0501090
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(State or other
jurisdiction of incorporation)
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(Commission File
Number)
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(IRS Employer
Identification No.)
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600 Anton Blvd., Suite 2000
Costa Mesa, California
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92626
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(Address of
principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
(714) 259-2500
Not Applicable
(Former name or
former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨
Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2
(b))
¨
Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
As
previously reported, on June 12, 2008, Commerce Energy Group, Inc.
(the Company) presented to Thomas L. Ulry, the Companys former Senior Vice
President, Sales and Marketing, a Severance Agreement and General Release (the Severance
Agreement). The material terms of the
Severance Agreement were described in Part II, Item 5 of the Companys
Quarterly Report on Form 10-Q for the Quarterly Period ended April 30,
2008, filed with the U.S. Securities and Exchange Commission (the SEC) on
June 12, 2008.
On June 13,
2008, Mr. Ulrys last day of employment with the Company, the Company presented
him with a new Severance Agreement and General Release (the Modified Severance
Agreement). The Modified Severance
Agreement contained one change from the Severance Agreement; namely, it limited
the scope of the customer non-solicitation provision to customers of the
Company with annual volumes of more than 600,000 KWh/yr or 18,000 DTh/yr. All of the other provisions of the Severance
Agreement remained the same. The Modified
Severance Agreement superseded the Severance Agreement. Also, on June 13, 2008, the Company and Mr. Ulry
signed the Modified Severance Agreement.
The
Modified Severance Agreement will become effective on June 21, 2008 (the Effective
Date); the eighth day after Mr. Ulry signed the Modified Severance
Agreement unless it is revoked by Mr. Ulry before that date. Pursuant to
the Modified Severance Agreement, Mr. Ulry would be entitled to a
severance payment of $84,330 payable as follows: $42,165 on the first business
day after the Effective Date; $21,082 on August 29, 2008; and $21,082 on October 31,
2008, in each case, less customary payroll deductions required by law. The aggregate severance payment to be paid
under the Modified Severance Agreement is referred to herein as the Severance
Benefit.
If Mr. Ulry
does not revoke the Modified Severance Agreement and it becomes effective, Mr. Ulry
would agree not to solicit the Companys employees or contractors or certain
customers (set forth above) for a period of twelve (12) months after June 13,
2008. The Modified Severance Agreement
includes provisions which would require Mr. Ulry to protect the Companys
proprietary information and contains a general release by Mr. Ulry of all
of the claims against the Company and its affiliates and representatives. The Modified Severance Agreement also
contains other customary provisions including Mr. Ulrys statutory rights
under the Older Workers Benefit Protection Act which permits him to revoke
portions of the Modified Severance Agreement within a seven day period after he
signs it.
If Mr. Ulry
elected to revoke portions of the Modified Severance Agreement, he would not be
entitled to the Severance Benefit. Mr. Ulry
would then be entitled to the severance benefits set forth in a letter
agreement dated May 31, 2005 between the Company and Mr. Ulry (the May 2005
Letter Agreement). Pursuant to the May 2005
Letter Agreement, the Company would be obligated to pay Mr. Ulry his
monthly salary, less customary payroll deductions required by law, for a period
of up to six months or until Mr. Ulry finds alternative employment. The aggregate amount of six months of Mr. Ulrys
salary, prior to applicable payroll deductions, equals $126,495.
The
foregoing descriptions of the Modified Severance Agreement and the May 2005
Letter Agreement are only summaries, are not complete and are qualified in
their entirety to the actual agreements, which are attached as Exhibits 99.1
and 99.2, respectively, and are each incorporated herein by reference.
2
Item 9.01. Financial
Statements and Exhibits.
Exhibit No.
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Description
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99.1
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Confidential Severance
Agreement and General Release dated June 13, 2008 by and between
Commerce Energy Group, Inc. and Thomas L. Ulry.
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99.2
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Employment Offer Letter
Agreement between Commerce Energy Group, Inc. and Thomas L. Ulry dated
May 31, 2005, previously filed with the SEC on October 31, 2005 as
Exhibit 10.30 to Commerce Energy Group, Inc.s Annual Report on
Form 10-K and incorporated herein by reference.
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99.3
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Letter from Thomas Ulry
to Commerce Energy Group, Inc., dated October 28, 2005, regarding
the May 31, 2005 Employment Offer Letter Agreement, previously filed
with the SEC on October 31, 2005 as Exhibit 10.31 to Commerce
Energy Group, Inc.s Annual Report on Form 10-K and incorporated
herein by reference.
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3
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, Commerce Energy Group, Inc.
has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
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COMMERCE ENERGY GROUP,
INC.
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a Delaware corporation
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Date: June 18,
2008
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By:
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/s/ C. DOUGLAS MITCHELL
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C. Douglas Mitchell
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Interim Chief Financial
Officer
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4
EXHIBIT
INDEX
Exhibit No.
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Description
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99.1
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Confidential Severance
Agreement and General Release dated June 13, 2008 by and between
Commerce Energy Group, Inc. and Thomas L. Ulry.
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99.2
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Employment Offer Letter
Agreement between Commerce Energy Group, Inc. and Thomas L. Ulry dated May 31,
2005, previously filed with the SEC on October 31, 2005 as Exhibit 10.30
to Commerce Energy Group, Inc.s Annual Report on Form 10-K and incorporated
herein by reference.
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99.3
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Letter from Thomas Ulry
to Commerce Energy Group, Inc., dated October 28, 2005, regarding
the May 31, 2005 Employment Offer Letter Agreement, previously filed
with the SEC on October 31, 2005 as Exhibit 10.31 to Commerce
Energy Group, Inc.s Annual Report on Form 10-K and incorporated
herein by reference.
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5
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